EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, September 21, 2011

The Trade-Off Is...: Court Of Appeals Of Texas Finds Jurors Can't Testify About Trading-Off Of Answers

Similar to its federal counterpart, Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors "trade-off answers," i.e., they reach a compromise verdict. Can jurors impeach their verdict through testimony concerning their trading-off of answers? Unsurprisingly, according to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Damian v. Bell Helicopter Textron, Inc., 2011 WL 3836464 (Tex.App.-Fort Worth 2011), the answer is "no." What is surprising to me is that this wasn't always the case in Texas.

In Damian

Appellants filed [a] lawsuit against Appellee Bell Helicopter Textron, Inc. on January 25, 2002, alleging, among other things, strict products liability and negligence, relating to the crash of a Bell 407 helicopter. The case proceeded to a jury trial in August 2007, and the jury returned its verdict on September 17, 2007. The jury found that there was a design defect in the helicopter; that the negligence of Bell and one of the helicopter pilots, Captain Damian, caused Appellants' injuries; that Bell and Captain Damian were each fifty-percent responsible for causing the accident and resulting injuries; and that Appellants' damages totaled $294,300. The jury also found that Bell did not act with malice. The trial court signed the final judgment on February 28, 2008.

All parties appealed from this verdict, with the appellants claiming, inter alia, the the trial court erred in (1) failing to accept juror affidavits; (2) failing to to conduct an open hearing concerning allegations that the jury traded-off answers on the jury charge, and (3) failing to grant a new trial due to alleged jury misconduct. The court's opinion does not explain exactly how jurors traded-off answers, but Golden Eagle Archery, 24 S.W.3d 362 (Tex. 2000), explains the process:

Frederick, Cline, and Lynch all recalled that the jury bartered on the amounts to award for disfigurement and loss of vision, although their accounts contradict each other in the specifics. Frederick said that initially ten jurors had agreed to award $2,500 for disfigurement and nine had agreed to award $2,500 for loss of vision, but traded votes to award $1,500 for disfigurement and $2,500 for loss of vision. Lynch, however, claimed that initially ten jurors had agreed on $1,500 for loss of vision, and eight agreed on $2,500 for disfigurement, but ultimately decided to switch these amounts. Cline merely remembered that the jurors "traded off" on these answers.

In other words, jurors "trade-off answers" when the cannot reach a unanimous result and thus compromise. Legally, this is not the correct way for jurors to reach a verdict, and, according to the court in Damian, jurors used to be able to testify concerning such trading off. According to the court, the "[a]ppellants cite[d] several cases for the proposition that "the trading of answers and the cluster answering are of such severity and obvious harm that a new trial must be granted.'" According to the court, though, these decisions were rendered before the passage of Texas Rule of Evidence 606(b). And, according to the court, while such testimony might have been allowed before Rule 606(b), it is now clearly inadmissible under the Rule, meaning that the appellants were not entitled to relief.



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